A Death Blow to McCain-Feingold

In a not wholly unanticipated move, the Supreme Court invalidated a key portion of the Bipartisan Campaign Reform Act of 2002 (BCFRA), also known as McCain-Feingold.

The decision in Citizens United v. Federal Election Commission was split. The majority opinion was written by Judge Anthony Kennedy, and the dissenting opinion was written by Judge John Paul Stevens (who is widely believed to be retiring after the present term). He was joined in dissent by Justices Sotomayor, Breyer, and Ginsburg. (The full text of the opinion can be found here.)

Like many cases of legislatively mandated restrictions on constitutional rights, BCFR was wrapped in the mantle of high-minded concerns for good government. Largely hyped in secret by the Pew Charitable Trusts and also by the usual media civic advancement poseurs, it was an effort to eliminate “soft money” in campaign financing; limit issue advocacy ads within 30 days of an election (when such speech would be most effective); and prohibit campaign ads paid for by corporations -- including non-profit issue organizations -- and unincorporated entities using any corporate or union funds.

It is far from clear that the legislation prohibiting such ads and expenditures proved any barrier to the creative campaign and special interest professionals, who certainly seem far more clever than the legislative branch at finding ways around such things. But it is clear that the Act posed substantial limits on the exercise of free speech when it is most valuable to both citizens and the notion of good government -- namely, election time.

History of Supreme Court Treatment of the BCFRA

There was no way of avoiding the obvious restrictions on free speech imposed by the Act, though neither the sponsoring senators nor their colleagues seemed to understand or care. And President Bush clearly thought the worst portions of the Act would be struck down by the Supreme Court -- although when he signed it, he expressed “reservations about the constitutionality of the broad ban on issue advertising."

Led by then-Senate Majority Whip Mitch McConnell, a group of plaintiffs challenged the Act, arguing that, on its face, it violated the First Amendment. Surprisingly, the Court rejected this “facial challenge” (that is, one based only on the clear language of the Act rather than one based on a dispute under it). In McConnell v. FEC, 540 U.S. 93, the Supreme Court upheld much of the legislation, determining that their decision was required by Austin v. Michigan Chamber of Commerce, 494 US 652.

Today the Court held that the rule prohibiting corporations and unions from using general funds to make independent expenditures for “electioneering determinations,” or from using speech advocating the election or defeat of a candidate (2 U.S.C. Sec 441 b), constitutes an ongoing prior restraint of free speech which must be invalidated. The Court thereby overruled the Austin decision, as well as the portions of the McConnell decision upholding the extension of the Section 441b restrictions on independent corporate expenditures.

The Court held that these restrictions constitute a ban on free speech backed by criminal sanctions, and that the Constitution bars permitting speech by preferred speakers while disfavoring speech by other, less favored, speakers. Deciding that Austin was poorly reasoned, the Court ruled it would not accord it further precedential value. (The case only involved a corporation, but the language of the opinion and logic suggest that it applies equally to the use of union funds.)

So, why the Court shift?

For non-lawyers, the Court’s changed stance might seem puzzling. However, it follows a line of reasoning which suggests the Court should always defer to the legislature, and should not prematurely assume constitutional infirmities until the facts make them clear, or if there appears to be no way the words can be applied in accord with the Constitution.